Sumner v. Summers

• Decision Date: 31 October 1873
• Citation: 54 Mo. 340
• Parties: A. SUMNER, Plaintiff in Error, v. GEORGE W. AND C. L. SUMMERS, Defendants in Error.
• Court: Missouri Supreme Court

54 Mo. 340

A. SUMNER, Plaintiff in Error,

v.GEORGE W. AND C. L. SUMMERS, Defendants in Error.

Supreme Court of Missouri.

October Term, 1873.

Error to Montgomery Circuit Court.

Fagg & Dyer, for Plaintiff in Error.

I. The note was for the exact amount of the defendant's indebtedness to the plaintiff at the time it was given. The plaintiff could secure this indebtedness without compounding a felony--and it is not compounding a felony to dismiss a prosecution, unless paid or agreed to be paid therefor.

II. In the authorities cited by defendants, a careful examin ation of them will show that they are not in point, nor in anywise analogous to this. In the case referred to in 44 Mo., 29, it will be seen, that a bond was given, in the body of which is expressed the fact of the embezzlement itself; and it was clearly shown, that the bond was given for no exact amount, nor did the parties know (as plaintiff did in this) the amount of the indebtedness. It was given to procure the release of Cook from a criminal prosecution, and not for money at that time ascertained and acknowledged to be due and owing, as in this case.

Saunders & Carkener, for Defendants in Error.

I. The compromise of a criminal prosecution is an illegal consideration, and a promise based upon it is void. (Cheltenham Co. vs. Cook, 44 Mo., 29; Featherston vs. Hutchinson, 1 Cro. Eliz., 199; Waite vs. Jones, 1 Bing., [N. C.] 656; Shackell vs. Rosier, 2 Bing., [N. C.] 634; Howden vs. Haight, 11 Ad. & El., 1033.)

II. If a part of the consideration was an agreement, either express or implied, to dismiss or suppress a prosecution for embezzlement then pending, such agreement taints the entire transaction, and renders the deed void in toto. (Vide Authorities cited supra, and 9 Ad. & El., 371; Clark vs. Ricker, 14 N. H., 44; Gardner vs. Maxey, 9 B. Monroe, 90; Town of Hinesburgh vs. Sumner, 9 Ver., 23; Bell vs. Wood's Admr., 1 Bay, 249; Den vs. Moore, 2 South., 470; Badger vs. Williams, 1 Chip., 137; Raguet vs. Roll, 7 Ohio, 76; Shaw vs. Spooner, 9 N. H., 197; Steuben Bank vs. Mathewson, 5 Hill, 249; 22 Amer. Jur., 23, 24.)

SHERWOOD, Judge, delivered the opinion of the court.

Action on a sealed note, or writing obligatory, for the sum of $790.30, dated September 9th, 1870, due in twelve months, and with two credits of that date indorsed thereon, one for $37.15 and the other for $75.00.

The petition mentions these credits, and states, that the defendants were entitled to them on the day the note was given.

The defendants filed separate answers. The father, C. L. Summers, admitted that he executed the note as the security of his co-defendant and son, George W. Summers, but denied that he owed the plaintiff the amount then due thereon, $678.15, or any other sum, and, as the grounds of his non-liability stated, that one W. B. Watson was the agent of A. Sumner & Co., of which plaintiff was the chief and managing member, which firm was the proprietor of the Wheeler & Wilson sewing machine; that Watson, as such agent, instituted a criminal proceeding against George W. Summers for embezzlement, charging him in his affidavit, dated September 8th, 1870, with having embezzled and converted to his own use certain sums of money, amounting to the sum of $787.55, belonging to said firm; that on the 9th day of September, 1870, George W. Summers was arrested by virtue of a warrant procured by said Watson, and issued upon the filing of said affidavit; and that said amount was charged to have been collected by said George W. Summers, while acting as the agent of said firm, in the year 1869, that, while said criminal prosecution was still pending before the justice, who issued the warrant, Watson made an agreement with the defendant, George W. Summers, that if he would execute his obligation in writing to plaintiff for $790.30, payable twelve months after date, &c., and procure the signature of his father, C. L. Summers, thereto, and deliver the same to said Watson, that he, Watson, would immediately discharge said George W. Summers, and dismiss, suppress and abandon the prosecution against him; that George W. Summers complied with the proposition of Watson, signed such a note, and procured the signature of his father thereto, as security, and delivered the note to Watson, who thereupon, and in fulfillment of his promise and agreement, did dismiss, abandon and suppress the prosecution; that the dismissing and suppressing of the criminal prosecution was the sole and only consideration of the note, and that the same was illegal and void.

The answers of the defendants were in the main alike, except that the answer of the defendant, George W. Summers, stated, that he did not owe the firm of Sumner & Co., or plaintiff, the sum of $787.55, nor had he converted to his own use, or embezzled, that sum; that there was, at the time of executing the note, an unsettled account betwern the firm and himself; that, his books and papers having been destroyed by fire, that firm attempted by means of the criminal prosecution to compel the defendant to settle on their own terms; that defendant refusing to do so, the prosecution was instituted, which was abandoned and he discharged upon complying with the proposition and agreement with Watson, &c.,

Replies, controverting the allegations contained in these answers, were duly filed, and the cause went to trial; at which evidence was introduced, tending to support the defenses set up in the answers, and also to show, that George W. Summers was indebted to the firm of Sumner & Co., for about the amount specified in the note.

At the conclusion of the testimony the court, at the instance of the defendants, gave two instructions; one which defined, and rightly defined, what is meant by the pendency of a criminal prosecution; and the other, of which complaint is chiefly made, was in these words: “If the jury believe from the evidence, that one W. B. Watson, acting as the agent of the firm of A. Sumner & Co. (of which plaintiff is a member) for the settlement of a claim of said firm against defendant George Summers, made an affidavit before ...